In any criminal investigation, interrogation of the suspects and accused
plays a vital role in extracting the truth from them. From time,
immemorial several methods, most of which were based on some form of
torture have been used by the investigating agencies to elicit information
from the accused and the suspects. With the advancement of science and
technology, sophisticated methods of lie detection have been developed
which do away with the use of “third degree torture” by the police. The
scientific tools of interrogation namely- the Lie detector or the
Polygraph test, the P300 or the Brain Mapping test and the Narcoanalysis
or the Truth Serum test are the main three tests that have recently been
developed for extracting confessions. These psychoanalytical tests are
also used to interpret the behaviour of the criminal (or the suspect) and
corroborate the investigating officers’ observations.

However, legal questions are raised about the validity of tests like Narco
Analysis, with some upholding its validity in the light of legal
principles and others rejecting it as a blatant violation of
constitutional provisions. It has been alleged that Narco Analysis is a
blatant violation of the Article 20(3) of the Indian Constitution.
However, in this age of ever increasing crime rate, such tests often
render a lot of help to the investigation agencies and hence, it is high
time to blend Article 20 (3) with the Narco Analysis.

First, let us understand what Narco Analysis is and how is it conducted.
This will help us to decide whether such tests actually violate Article 20
(3). In India at Forensic Science Laboratories in Bangalore and Gujarat,
Narco Analysis is conducted by injecting 3 grams of sodium pentothal
dissolved in 300 ml of distilled water and this prepared solution is
administered intravenously along with dextrose over a period of 3 hours
with the help of anaesthetist. Obviously this test has some invasion on
the body. The rate of administration is so controlled to drive the suspect
slowly into the state of hypnotic trance. The ECG and blood pressure are
monitored continuously throughout the testing procedure. The revelations
made during the hypnotic trance are recorded both in video and audio
cassettes. The questions are designed carefully and are repeated
persistently in order the ambiguities during drum interrogation. The
report prepared by the experts is useful in the process of collecting the
evidence. A person is able to lie by using his imagination. In the Narco
Analysis Test, the subject enters into a “twilight” stage i.e. a stage
between consciousness and unconsciousness. In this state, it becomes
difficult for him to lie and his answers would be restricted to facts he
is already aware of. Prior to the test, Court’s permission and written
consent of subject is secured which are mandatory for conducting the test.
The procedure is explained to the subjects. The test is conducted only in
the presence of forensic and medical experts.

Next, it becomes imperative to analyse Article 20 (3) of the Indian
Constitution. Clause (3) of Article 20 declares that no person accused of
an offence shall be compelled to be a witness against himself.

This
provision may be stated to consist of the following three components:
1. it is a right pertaining to a person accused of an offence
2. it is a protection against compulsion to be a witness; and
3. it is a protection against such compulsion resulting in his giving
evidence against himself.

The privilege under clause (3) is confined only to an accused i.e. a
person against whom a formal accusation relating to the commission of an
offence has been levelled which is in the normal course may result in the
prosecution. A person against whom a first information report has been
recorded by the police and investigation has been ordered by the
Magistrate can claim the benefit of the protection.

Further, the guarantee
in Article 20 (3) is against the compulsion to be ‘a witness’. In State of
Bombay v. Kathi Kalu Oghad a Bench of the Supreme Court consisting of
eleven judges held that: “It is well established that clause (3) of
Article 20 is directed against self-incrimination by the accused person.
Self-incrimination must mean conveying information based upon personal
knowledge of the person giving the information and cannot include merely
the mechanical process of producing documents in court which may throw a
light on any of the points in the controversy, but which do not contain
any statement of the accused based on his personal knowledge.” The third
component of Article 20 (3) is that it is a prohibition only against the
compulsion of the accused to give evidence against himself. In Kalawati v
H.P. State , the Supreme Court held that Article 20 (3) does not apply at
all to a case where the confession is made by an accused without any
inducement, threat or promise.

Narco Analysis in the light of Article 20(3): The discussion on Article 20
(3) spells out three requirements which must be met with in order to claim
protection under Article 20 (3). If any of these requirements is not met
with, Article 20 (3) cannot be invoked. If Narco Analysis is carried out
on an accused, it definitely fulfils the first requirement of Article 20
(3). However, the question is whether subjecting a suspect to such a test
also fulfils the requirement of Article 20 (3). In the case of State of
Andhra Pradesh v. Smt. Inapuri Padma, the Court by ordering a few
suspects to undergo a Narco Analysis test held that the question of
putting the test of testimonial compulsion in case of suspects does not
arise.

Hence, I feel that if a person is suspected to have some information
regarding the commission of an offence, there should be no prohibition on
conducting a Narco Analysis test on him as the protection under Article 20
(3) is available only to a person accused of an offece. Another
requirement of Article 20 (3) is that there should be no compulsion on the
accused to give testimony against him. However, in Narco Analysis test,
the question of compulsion does not arise because the prior consent of the
person who is supposed to undergo such a test is always taken.

In fact,
the Supreme Court in State of Bombay v Kathi Kalu Oghad, held that there
is no compulsion when a police officer, in investigating a crime against,
a certain individual, asks him to do a certain thing. The fact that a
person was in police custody when he made the statement is not a
foundation for an inference that he was compelled to make the statement.
The mere questioning of an accused by a police officer, resulting in a
voluntary statement, which may ultimately turn out to be incriminatory, is
not compulsion. Considering, all these we can easily conclude that Narco
Analysis does not violate Article 20 (3) to the extent that the person
undergoing such a test is not compelled to do so, rather it is done with
the consent of the person who has full knowledge of such a test.

The third requirement of Article 20 (3) is that the there should be
compulsion to give evidence against oneself. Only incriminatory statements
are hit by Article 20(3). Whether a statement is incriminatory or not can
be ascertained only after the test is conducted and not before it. Hence,
I do not see any reason to prohibit such a test because there are enough
protections available under the Indian Evidence Act, under Criminal
Procedure Code and Article 20(3), to prevent inclusion of any
incriminating statement if one comes out after administration of the test.
By conducting Nacrco Analysis, the investigating agencies might discover
some information which will help them in the investigation of the crime
and thus find out the true culprit. In case, during the test, the accused
makes a statement that is incriminatory that need not be made admissible
in the Court as it is against Article 20 (3), but the rest of the
information can definitely be used by the investigating agencies to solve
the case. The above discussion very clearly suggests that Narco Analysis
test can be conducted without violating Article 20 (3).

The Indian Courts have so far refused to admit the Narco Analysis as
evidence, but Narco Analysis is being carried out by the investigators.
The reason is that although confession made to the police or in the
presence of police is not admissible in Courts, the information is
admissible by which an instrument or object used in commission of crime is
discovered. This is clear from the wording of Section 27 of the Indian
Evidence Act, 1872. Section 27 of the Indian Evidence Act, 1872 is founded
on the principle that if the confession of the accused is supported by the
discovery of a fact, the confession may be presumed to be true, and not to
have been extracted. It comes into operation only: (i) if and when certain
facts are deposed to as discovered in consequence of information received
from an accused person in police custody; and (ii) if the information
relates distinctly to the fact discovered. If the self incriminatory
information given by an accused person is without any threat that will be
admissible in evidence and will not be hit by Article 20 (3).

Section 156 (1) of the Code of Criminal Procedure which reads “Police
officer's power to investigate cognizable cases” states that any officer
in charge of a police station without the order of a Magistrate can
investigate any cognizable case which a Court has power to inquire into or
try under the provisions of Chapter XIII. “Investigation” as defined in
Section 2 (h) of Cr.P.C includes all the proceedings under the Code of
Criminal Procedure for the collection of evidence conducted by a Police
Officer or by any person (other than a Magistrate) who is authorised by a
Magistrate in that behalf. Thus, collection of evidence by Police Officer
is permitted under law. Conducting Narcoanalysis Test on accused is in the
process of such evidence by the investigating agency. The Karnataka High
Court also made a similar observation in the case of
Selvi vs State of
Karnataka by Koramangala Police Station. This provision is also
constitutionally valid.

Let us now understand the approach of the judiciary towards Narco
Analysis. In the unreported case of Ramchandra Ram Reddy v The State of
Maharashtra, the Court posed with the question whether P-300, Lie Detector
and Narco Analysis tests are violative of Article 20(3) observed:
“The question which falls for consideration therefore, is whether such
statement can be forcibly taken from the accused by requiring him to
undergo the Truth Serum Test against his will. It will be seen that such
statement will attract the bar of Article 20(3) only if it is inculpating
or incriminating the person making it. Whether it is so or not can be
ascertained only after the test is administered and not before. In our
opinion therefore, there is no reason to prevent administration of this
test also because there are enough protections available under the Indian
Evidence Act, under Criminal Procedure Code and under the Constitution
(Article 20(3), to prevent inclusion of any incriminating statement if one
comes out after administration of the test…In so far as the third test
(Narco Analysis) is concerned enough protection exists, recourse to which
can be taken if and when the investigating agency seeks to introduce such
statement as evidence.”
The Court dismissed the petitions filed against these tests and held that
these tests do not compel the accused or witness to incriminate himself
and there is therefore no question of violation of Article 20(3) of the
Constitution.

In Smt. Selvi and Ors v. State by Koramangala Police Station , the Court
observed that the field of criminology has expanded rapidly during the
last few years, and the demand for supplemental methods of detecting
deception and improving the efficiency of interrogation have increased
concomitantly. Narco analysis for criminal interrogation is a valuable
technique, which would profoundly affect both the innocent and the guilty
and thereby hasten the cause of justice. Further observed that enough
protections exist to which recourse can be had by accused if and when the
investigating agency seeks to introduce into evidence the information or
statement obtained under Narco-analysis Test, if the same is found
inculpatory or confession. That apart, statement or information by accused
in the said test may even show their innocence or may lead to discovery of
a fact or object material in the crime. If so, it is not at all hit by
Article 20(3).

In the case of Rojo George v. Deputy Superentendent of Police, the Court
while allowing a Narco Analysis test observed that in present days the
techniques used by the criminals for commission of crime are very
sophisticated and modern. The conventional method of questioning may not
yield any result at all. That is why the scientific tests like polygraph,
brain mapping, narco analysis, etc. are now used in the investigation of a
case. When such tests are conducted under strict supervision of the
expert, it cannot be said that there is any violation of the fundamental
rights guaranteed to a citizen of India.

In
Santokben Sharmanbhai Jadeja v. State of Gujarat , the Court while
upholding the order for conducting a Narco Analysis on the accused
Santokben Sharmanbhai Jadeja, observed that “when after exhausting all the
possible alternatives to find out the truth and nab the criminal/accused
and when it is found by the prosecuting agency that there is no further
headway in the investigation and they are absolutely in dark, there is a
necessity of such a test. On the basis of revelations and/or the statement
recorded while conducting/performing the Narco Analysis Test, prosecuting
agency may have some clues which would further help and/or assist the
Investigating Agency to further investigate the crime and at this stage,
there will not be any bar of Article 20(3) of the Constitution of India
and merely conducting/performing of a Narco Analysis Test on the accused,
the protection guaranteed under Article 20(3) of the Constitution of India
is not violated. As stated above, only and only at the stage when the
prosecuting agency is likely to use such statement as evidence and if it
is inculpating and incriminating the person making it, it will attract the
bar of Article 20(3).”

The Court further observed that various provisions
under the Criminal Procedure Code right from Sections 156 to 159 and other
related provisions, collection of evidence by the police officer is
permitted under the Law. Conducting the Nsrco Analysis test on accused is
to be considered as process of collection of such evidence by the
Investigating Agency. The Investigating Agency cannot be prevented to
interrogate the accused at the stage of investigation and restraining the
Investigating Agency to further investigate the crime through the
aforesaid two tests would tantamount to interfere with the right of the
Investigating Agency to investigate the crime of which it is statutorily
authorized.

In Dinesh Dalmia v State, the Court observed that where the accused had
not allegedly come forward with the truth, the scientific tests are
resorted to by the investigation agency. Such a course does not amount to
testimonial compulsion. From the above discussion, it is very evident that
conducting a Narco Analysis test does not violate Article 20 (3) per se.
Only after conducting the test, if the accused divulges information which
is incriminatory, then it will be hit by Article 20(3). Other information
divulged during the test can help the investigation. Thus, there is no
reason why we should prohibit such a test on grounds of
unconstitutionality.

In fact, the revelations made during the Narco analysis have been found to
be of very useful in solving sensational cases of Mumbai serial train
blasts, blasts at Delhi, Malegoan and more recently in Hyderabad and in
various other sensational cases of National and International
ramifications. In most of these cases, the revelations made have led to
the discovery of incriminating information’s favouring probative truth and
consequently recoveries have been made in large number of cases U/s 27 of
IEA. Thus, Narco Analysis is proving to be a useful tool in the field of
criminal investigation. However, the legal hurdles in use of this
technique should be removed first before its application. It is high time
that we blend this test with Article 20(3) in such a manner that no
questions are raised as to its constitutional validity. For this purpose,
it is essential that the Union Government should come out with certain
guidelines which are to be strictly followed while conduction such a test.

1. The permission of the Court and the written consent of the person
undergoing such a test should be made compulsorily.
2. The person who is supposed to undergo such a test must be given all the
necessary details about the test before he is asked to sign the consent
form.
3. Control and supervision of the forensic laboratories should be made
under the autonomous bodies like NHRC and the States Human Rights
Commissions.
4. NHRC has suggested that at the time of polygraph test a forensic
psychologist, a psychiatrist and an anaesthetist should remain present.
Similar team can be directed to remain present at the time of Narco
Analysis with the additional safeguard of entire proceeding audio and
videotaped.

In conclusion, I would like to quote, Dr. R.E. House’s address to the
First Annual Meeting of the Eastern Society of Anaesthetists in 1925 about
the role of his scopolamine tests:
" ... Society has the right to be protected against the criminal, and all
of society's rights are manifestly superior to those of the criminal.
There can be no gainsaying the fact that a suspect is either innocent or
guilty, and no one knows the truth better than does the suspect himself.
It, therefore, stands to reason, that where there is a safe and humane
measure existing to evoke the truth from the consciousness of the suspect,
that society is entitled to have the truth........... If society has the
right to take property, liberty, and life for its protection, then society
has the right to make, by trained men, the use of truth serum legal. The
framers of the Bill of Rights believed the rights of society were
paramount to the rights of the criminal. It was an instrument for the
protection of the innocent and not intended for the acquittal of the
guilty".